Breaking: Federal judge rules ObamaCare mandate unconstitutional; Update: Bill argues Congressional power without “logical limitation”

posted at 12:16 pm on December 13, 2010 by Ed Morrissey

CNN has a breaking alert on a ruling by a federal judge in Virginia that rejects ObamaCare as unconstitutional:

A federal judge in Virginia has ruled parts of the sweeping health care reform effort led by President Obama to be unconstitutional. This is the first federal court to strike down the law, contradicting other recent rulings the law was permissible. The key issue of contention was the “individual mandate” requirement that most Americans purchase health insurance by 2014.

This case (Virginia v Sebelius) was the lawsuit brought by the states against ObamaCare.  This is the test case that had the best chance of overturning the law, and the states have apparently won an important finding in the district court.

According to Dan Foster at NRO, the judge ruled that Congress “exceeded its authority” by imposing an individual mandate to purchase insurance.

Update: Actually, this suit was brought by Virginia alone.  The other case brought by 20 other states in one suit is still pending.

Update II: Still waiting for more data from the opinion, but several commenters have mentioned the lack of a severability clause in ObamaCare to argue that this decision would invalidate the entire bill.  Not so fast, wrote David Catron at American Spectator last week:

This is probably why the White House has made so much of recent rulings by U.S. District Judges George Steeh and Norman Moon, Clinton appointees who dismissed relatively inconsequential anti-PPACA lawsuits. The administration knows, of course, that the Virginia case presents a far more serious threat than either of these cases. It has already survived a motion to dismiss and it was heard in the U.S. District Court for the Eastern District of Virginia, the famous “rocket docket” from which important cases are expeditiously launched to the U.S. Court of Appeals and beyond. As Judge Hudson put it during the October hearing, “[T]his is only one brief stop on the way to the United States Supreme Court.” Nonetheless, if he rules in favor of Virginia, the administration will no doubt claim it is ahead two-to-one.

The jumpiness of the White House notwithstanding, it is not a given that Judge Hudson will strike down the entire law. He has shown skepticism about the mandate, but that issue is relatively straightforward compared to the severability question. On the mandate, he can follow the example of Judges Steeh and Moon, who held that the decision notto engage in economic activity somehow constitutes “commerce” as the word is used in the Constitution, or he can rule that such reasoning does too much violence to the intent of the founders. On severability, Hudson’s choices are more numerous and the legal precedents are less auspicious. In fact, the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place.

It’s also a given that the Supreme Court will wind up deciding this, so any talk of severability at this point is academic.

Update III: Fox News is now reporting that Judge Hudson won’t issue an injunction against the entire ObamaCare law, which means that he’s seeing a de facto severability in it.  Without the mandate, though, the system won’t work at all, which gives Congress a big opening to dismantle the rest.

Update IV: Gabe Malor has begun perusing the opinion and finds the heart of Hudson’s decision on page 24:

Judge Hudson (pg 24): mandate “exceeds the Commerce Clause powers vested in Congress under Article I”

Hudson also rejected the administration’s argument that this was permissible under taxation authority by noting that the administration had publicly disputed that it was a tax, and Congress had rejected that argument as well when passing the bill (pages 33-36).   Instead, Hudson found it to be a “penalty,” and unconnected to any enumerated power (page 36).

Update V: Hudson hits the nail on the head with this:

Hudson rejected the government’s argument that it has the power under the Constitution to require individuals to buy health insurance, a provision that was set to take effect in 2014.

“Of course, the same reasoning could apply to transportation, housing or nutritional decisions,” Hudson wrote. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation” and is unsupported by previous legal cases around the Commerce Clause of the Constitution.

Hudson — perhaps not inadvertently — just described the progressive agenda in a single sentence, and why the Constitution forbids it.

Stand by — more to come….


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Count it…

Skywise on December 13, 2010 at 12:18 PM

Like I said in the Headlines thread:

Whoa.

Abby Adams on December 13, 2010 at 12:18 PM

The judge is a hostage taker! EEEHHAAAAA!

echosyst on December 13, 2010 at 12:18 PM

Obama will have President Clinton give a Press Conference within the Hour.

portlandon on December 13, 2010 at 12:18 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

Can you say : Alert the neurosurgeons as heads will be exploding in one, two, three…..

Fuquay Steve on December 13, 2010 at 12:19 PM

Went to VA for the first time last week! Woo!

blatantblue on December 13, 2010 at 12:19 PM

Lemme guess, this Activist Judge is a Republican appointee?

Gotta love me some Commerce Clause! Not to be confused with Sanity Claus.

Del Dolemonte on December 13, 2010 at 12:19 PM

THat was my least favorite part of a terribly flawed bill. I never thought I had to purchase something just to be a citizen. The auto insurance analogy was flawed, because I don’t have to participate in the system if I don’t want to by not driving. There was no opt-out of socialist healthcare. Hopefully this will be upheld and send a deathblow to obamacare.

matthew26 on December 13, 2010 at 12:19 PM

There will be more if-and-buts in this story than there are snow flakes in the Metrodome.

Limerick on December 13, 2010 at 12:19 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

Your tears. I eat them like Unicron.

fiatboomer on December 13, 2010 at 12:19 PM

Get Clinton out there to sell this sh*t!!!!

echosyst on December 13, 2010 at 12:19 PM

An early Christmas present.

Greta was just discussing this w/Jon on FOX, and restating that if this ruling holds at the Supreme Court, then the bill falls apart.

She also mentioned the way the Dems have played fast and loose with not calling it a tax, and then when they hit the courts calling it a tax. They did this because if it’s not a tax, then the courts can rule immediately. If it is a tax, then they cannot because you have to have paid a tax before going to court. (I think I have that correct).

I believe someone mentioned the VA Attorney General will be on her show tonight.

INC on December 13, 2010 at 12:20 PM

Wow, what is the next step?

Oil Can on December 13, 2010 at 12:20 PM

But…but….what about the “good and welfare clause” the House Dem said was the constitutional basis for it?

Wethal on December 13, 2010 at 12:20 PM

He just ruled that the individual mandate is unconstitutional. The DOJ was arguing that it was a “tax” but that didn’t fly. Obamacare goes down in flames, probably the best thing that could happen to Obama. Now the severability clause comes into play. Can 2000+ pages of legislation be declared null and void because some staffer screwed the pooch? Somehow I doubt it. Call me a pessimist.

Mord on December 13, 2010 at 12:20 PM

Are federal judges racists????

/SARC>

One down…

landlines on December 13, 2010 at 12:20 PM

America 1—O’dumbo 0

hawkman on December 13, 2010 at 12:20 PM

struck down by his honor: JUDGE RACIST!

SDarchitect on December 13, 2010 at 12:20 PM

Let’s here it for judicial activism!

Legislating from the bench isn’t so bad now, is it?

YYZ on December 13, 2010 at 12:20 PM

Not the end by a long shot, but a nice slap in the face to libs everywhere. Monday seems a little brighter.

search4truth on December 13, 2010 at 12:20 PM

“Are you kidding? Are you kidding?”

-Nancy Pelosi

Wethal on December 13, 2010 at 12:20 PM

Yes! now if the newly elected GOP house grows a pair and uses this ruling to jam down a repeal of this law then we can have an adult conversation about this…..

hat tip to Ed. he beat Rush to this breaking news…..

unseen on December 13, 2010 at 12:20 PM

Step #1: CHECK!

Yellowdog12 on December 13, 2010 at 12:21 PM

It would only be shocking if the court held it to be constitutional that a citizen were required to purchase a product.

Vashta.Nerada on December 13, 2010 at 12:21 PM

See that? That’s the system working, right there.

Inkblots on December 13, 2010 at 12:21 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

Your opinion regarding this matter is neither required nor desired…

As far as MY opinion goes: Round 1 goes to the Good Guys…

Khun Joe on December 13, 2010 at 12:21 PM

This is a big fuggin deal!

Abby Adams on December 13, 2010 at 12:21 PM

Wow, what is the next step?

Oil Can on December 13, 2010 at 12:20 PM

I think Greta said the 4th Circuit Court.

INC on December 13, 2010 at 12:22 PM

Obama calls federal judge a hostage taker and enemy demanding hand to hand combat in 5…4….3………

Knucklehead on December 13, 2010 at 12:22 PM

YYZ on December 13, 2010 at 12:20 PM

when all you have is lemons make lemonade

unseen on December 13, 2010 at 12:22 PM

He just ruled that the individual mandate is unconstitutional. The DOJ was arguing that it was a “tax” but that didn’t fly.

Hard to argue it was a tax when Obama was on record several times before the votes saying it was not.

Hey, those admissions against interest can come back to bite you.

Wethal on December 13, 2010 at 12:22 PM

Great. If the courts can take care of the constitutionality of the thing…. that would be a twin strike. We will take care of defunding the thing.

antisocial on December 13, 2010 at 12:22 PM

Let the fireworks begin…

Dark-Star on December 13, 2010 at 12:22 PM

Down goes Frazier…Down goes Frazier….

alecj on December 13, 2010 at 12:22 PM

From the headlines:

In the ruling, Judge Hudson notes that the administration has changed its rhetoric from mandate to tax.

amerpundit on December 13, 2010 at 12:19 PM

INC on December 13, 2010 at 12:22 PM

Update: Actually, this suit was brought by Virginia alone. The other case brought by 20 other states in one suit, is still pending.

Down in Florida, I think.

Wethal on December 13, 2010 at 12:23 PM

Let’s here it for judicial activism!

Legislating from the bench isn’t so bad now, is it?

YYZ on December 13, 2010 at 12:20 PM

If you’re up in Toronto (like your initials lead me to believe): same same for you that I said to Drywall…

Khun Joe on December 13, 2010 at 12:23 PM

Let’s here (sic) it for judicial activism!

Legislating from the bench isn’t so bad now, is it?

YYZ on December 13, 2010 at 12:20 PM

Try looking up the definition of judicial activism. Hint, it isn’t when a judge rules that a law is unconstitutional. Generally, it is when a judge finds a penumbra.

Vashta.Nerada on December 13, 2010 at 12:23 PM

YEEEHAW!!!!!! please oh please let this stick

CambellBrown on December 13, 2010 at 12:23 PM

Most excellent news….

Another Christmas party for dear leader to attend in 5….4….3…

cmsinaz on December 13, 2010 at 12:23 PM

No severability baby! All we need is one part to go down, and the whole is gone.

MTF on December 13, 2010 at 12:24 PM

Al though this is of little consequence (since this will be going to the Supreme Court) symbolically this is a huge moment.

Indy82 on December 13, 2010 at 12:24 PM

YYZ on December 13, 2010 at 12:20 PM

when all you have is lemons make lemonade

unseen on December 13, 2010 at 12:22 PM

I would prefer that YYZ just suck on a lemon… and smile…

Khun Joe on December 13, 2010 at 12:24 PM

Vashta.Nerada on December 13, 2010 at 12:23 PM

Thank you.

INC on December 13, 2010 at 12:24 PM

Let Freedom Ring!

kingsjester on December 13, 2010 at 12:24 PM

I don’t feel sorry for the Romney fans here. If Obamacare goes down so does Romneycare.

FloatingRock on December 13, 2010 at 12:24 PM

Yeah, Baby! But I’m sure Breyer will say that wasn’t what Madison intended.

cartooner on December 13, 2010 at 12:25 PM

YYZ on December 13, 2010 at 12:20 PM

Heh. Like federal spending…you just have to find the right issue.

Dark-Star on December 13, 2010 at 12:25 PM

Obama will have President Clinton give a Press Conference within the Hour.

portlandon on December 13, 2010 at 12:18 PM

+1

VibrioCocci on December 13, 2010 at 12:25 PM

Healthcare is out? Healthcare is out?!

– CNN Anchor.

WisRich on December 13, 2010 at 12:25 PM

Let’s here it for judicial activism!

Legislating from the bench isn’t so bad now, is it?

YYZ on December 13, 2010 at 12:20 PM

If it is genuinely unconstitutional, saying so isn’t judicial activism. Making up penumbras on the other hand…

Esthier on December 13, 2010 at 12:25 PM

From the headlines:

In the ruling, Judge Hudson notes that the administration has changed its rhetoric from mandate to tax.

amerpundit on December 13, 2010 at 12:19 PM
INC on December 13, 2010 at 12:22 PM

Because they decided that the authority to tax was a stronger argument that the commerce clause argument.

Unfortunately, there was too much on the record by Obama and the others saying it was not a tax.

Wethal on December 13, 2010 at 12:26 PM

I’m certain the Leftists anticipated this. Their primary imminent concern was not implementing a new health care system, but setting in place the mechanisms whereby the old one can be destroyed.

The rest is still in place, and the health care industry is still forced to respond as if this will be law. As they implement changes, and people are forced out of their health care as a result, the people are being funneled into an ever narrowing array of options, the end goal being a taxpayer funded universal system.

I hardly think this is a setback, but rather, an imposed distraction. They put this mandate in place understanding that all attention and energy would be focused on overturning it, while the dismantling of the best health care system in the world proceeds on pace.

IronDioPriest on December 13, 2010 at 12:26 PM

There really is a God.

dforston on December 13, 2010 at 12:26 PM

It’s fitting that Obama will go down in history as the paper marxist.

John the Libertarian on December 13, 2010 at 12:26 PM

It’s worth noting that prior to this, Virginia had passed a law declaring no citizen would be required to purchase health care. It’s called the Virginia Healthcare Freedom Act.

hawksruleva on December 13, 2010 at 12:26 PM

FloatingRock on December 13, 2010 at 12:24 PM

Not quite, but I understand the sentiment. Federal v. States, etc.

/non-Romney fan

Abby Adams on December 13, 2010 at 12:26 PM

Of course this decision will be appealed. Are there enough votes on the Supreme Court to uphold this decision or will they overturn this decision early next year. The legislature is the only way to kill this not the courts. Perhaps if senators didn’t have six year terms they would listen to the will of the people more often.

Tommy_G on December 13, 2010 at 12:26 PM

It’s not even my birthday!

Meric1837 on December 13, 2010 at 12:26 PM

Esthier on December 13, 2010 at 12:25 PM

People have forgotten what judges are supposed to do.

INC on December 13, 2010 at 12:26 PM

It would only be shocking if the court held it to be constitutional that a citizen were required to purchase a product.

Vashta.Nerada on December 13, 2010 at 12:21 PM

That never did make sense to me either.

matthew26 on December 13, 2010 at 12:26 PM

Darn activist judges!1!1 RABBLERABBLERABBLE!!! *liberal foaming at the mouth*

Good Solid B-Plus on December 13, 2010 at 12:27 PM

I believe someone mentioned the VA Attorney General will be on her show tonight.

INC on December 13, 2010 at 12:20 PM

Greta has been doing an incredible job following this and keeping it front and center on her show……….for months.

Knucklehead on December 13, 2010 at 12:27 PM

If Obamacare goes down so does Romneycare.

FloatingRock on December 13, 2010 at 12:24 PM

maybe, maybe not depends on how the judges rule on the 10th amendment. If the mandate is incorperated or not….

unseen on December 13, 2010 at 12:27 PM

Let’s here it for judicial activism!
Legislating from the bench isn’t so bad now, is it?
YYZ on December 13, 2010 at 12:20 PM

No, this would be judicial de-activism. Or anti-legislating.

rrpjr on December 13, 2010 at 12:28 PM

Note to Joe Biden:

This is a big effing deal!

John Deaux on December 13, 2010 at 12:28 PM

Let’s here it for judicial activism!

Legislating from the bench isn’t so bad now, is it?

YYZ on December 13, 2010 at 12:20 PM

Silly liberal. A judge inventing new things in the Constitution is judicial activism. A judge declining to invent new things in the Constitution is not.

tom on December 13, 2010 at 12:28 PM

Obama will have President Clinton give a Press Conference within the Hour.

portlandon on December 13, 2010 at 12:18 PM

ROFL!
Love it!

This decision is the Best!!!

Jenfidel on December 13, 2010 at 12:28 PM

In the ruling, Judge Hudson notes that the administration has changed its rhetoric from mandate to tax.

amerpundit on December 13, 2010 at 12:19 PM

…Does he explain why that matters?

crr6 on December 13, 2010 at 12:28 PM

The liberals are coming…the liberals are coming!

Or, as Capt. Picard said….

“Notify Star Fleet…we have engaged the Borg”

BobMbx on December 13, 2010 at 12:28 PM

Went to VA for the first time last week! Woo!

blatantblue on December 13, 2010 at 12:19 PM

Go away, Yankee!!! ;p

ladyingray on December 13, 2010 at 12:28 PM

Wait until the activist judges, like the 9th circuit start defending ObamaCare.

This is going to get messy.

portlandon on December 13, 2010 at 12:29 PM

Yippeee!

Key West Reader on December 13, 2010 at 12:29 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

Of course. When you sit, suffering in a Canadian waiting room, naturally you want others to suffer.

MadisonConservative on December 13, 2010 at 12:29 PM

I’m sure Breyer will vote to overturn this decision, determining that Madison would’ve wanted it.

WisRich on December 13, 2010 at 12:29 PM

Wait until the activist judges, like the 9th circuit start defending ObamaCare.

This is going to get messy!

portlandon on December 13, 2010 at 12:29 PM

Does he explain why that matters?

crr6 on December 13, 2010 at 12:28 PM

As Justice Breyer has explained, its all about “intent”.

BobMbx on December 13, 2010 at 12:29 PM

this ruling means it will go before the SCOTUS> Since we now have twodifferent rulings from 2 federal benches. the SCOTUS MUST now hear the case…..so much for the left’s hope. the SCOTUs is the only right leaning branch of government we have left…….here is hoping that we lose no judges before that hearing….

unseen on December 13, 2010 at 12:29 PM

Hey, O-Blah-Blah, that’s what happens when you have Dr. Moe, Dr. Curly and Dr. Larry writing healthcare legislation for you.

GrannyDee on December 13, 2010 at 12:29 PM

…Does he explain why that matters?

crr6 on December 13, 2010 at 12:28 PM

I heard a snippet that it has something to do with the tax codes. I’ll see if I can find it.

ladyingray on December 13, 2010 at 12:30 PM

Wethal on December 13, 2010 at 12:26 PM

Thanks, Wethal. Above I mentioned that on FOX Greta stated the Dems played fast and loose with the terms mandate and tax because if it’s not a tax, then the courts can rule immediately. If it is a tax, they cannot because you have to have paid a tax before going to court.

Is this your understanding? Did I hear correctly?

INC on December 13, 2010 at 12:30 PM

Breaking: Judge throws elbow, Obama gets twelve stitches in his mandate.

Yoop on December 13, 2010 at 12:30 PM

If it is genuinely unconstitutional, saying so isn’t judicial activism. Making up penumbras on the other hand…

Judicial activism has always been in the eye of the beholder. It’s never activism if you agree with the ruling.

YYZ on December 13, 2010 at 12:31 PM

There be some step’n n fetch’n in the old lib town t’night.

Speakup on December 13, 2010 at 12:31 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

You should be thanking us for fighting this. Because, God forbid, one day you may need care you can’t get under your Government plan. Your only alternative….the United States and it’s health care system. Even the King of Saudi knew that.

capejasmine on December 13, 2010 at 12:31 PM

…Does he explain why that matters?

crr6 on December 13, 2010 at 12:28 PM

He was noting it. I don’t believe he was basing his decision on it.

But why does it matter? Perhaps because it demonstrates what even the administration thinks about it outside of the courtroom.

If the Attorney General of Virginia had been on record outside the court saying he didn’t really believe it is unconstitutional but rather this is all about politics, the left would certainly find an interest in that. And they’d love the judge to note it.

amerpundit on December 13, 2010 at 12:32 PM

Wonderful news. I wonder what the lame duck Dems are saying now behind closed doors. All that sacrifice in the name of Pelosi, Reid, and Clinton, and it still goes down. I can’t see the Supremes overturning this. Kennedy isn’t THAT wishy-washy.

Aardvark on December 13, 2010 at 12:32 PM

IronDioPriest on December 13, 2010 at 12:26 PM

I’m just hoping you are wrong. But it does seem to me that the democrats that voted for it never intended to make healthcare more affordable or available, but to destroy the best system on the planet.

matthew26 on December 13, 2010 at 12:32 PM

I only wish Cambell Brown was on CNN right now so I could watch her flip out. I have still not forgiven her for the Bristol Palin treatment during the 2008 campaign.

I’m sorry, I got lost in my personal vendetta for a moment… yay! go team! Myabe my health insurance premium will stop going up???

CambellBrown on December 13, 2010 at 12:33 PM

America deserves this ridiculous quagmire. Have fun.

Dave Rywall on December 13, 2010 at 12:18 PM

Canada deserves you. Go show her a good time.

DarkCurrent on December 13, 2010 at 12:34 PM

We have a new healthcare crisis. The lame ducks need to pass nationalization of all healthcare entities immediately. Just write it up and pass it. We’ll find out what’s in it later.

stefano1 on December 13, 2010 at 12:34 PM

Okay. So apparently Hudson rejects that inactivity is tantamount to commercial activity.

He also says the purpose of the individual mandate wasn’t to generate revenue but to punish individuals for not engaging in commerce. Which he finds unconstitutional.

amerpundit on December 13, 2010 at 12:34 PM

Circuit split on its way….. yea…

Mark

mailmars on December 13, 2010 at 12:35 PM

He was noting it. I don’t believe he was basing his decision on it.

You’d better hope so.

But why does it matter? Perhaps because it demonstrates what even the administration thinks about it outside of the courtroom.

I’m not sure how that’s relevant to whether the mandate is authorized by the Constitution. If Congress passed a law regulating the interstate sale of cabbages (obviously constitutional under the ICC) it wouldn’t be unconstitutional just because some Congressman said “actually, I think this is a tax!”

crr6 on December 13, 2010 at 12:35 PM

…Does he explain why that matters?
crr6 on December 13, 2010 at 12:28 PM

For one thing tax laws must originate in the House and Obamacare as passed originated in the Senate.

tommyboy on December 13, 2010 at 12:35 PM

From Gabriel Malor:

J. Hudson finds that it is not a “tax”, but rather a “penalty” with no genuine revenue-raising purpose. (p. 35-36)

So he’s finding the government has the ability to tax for revenue but that wasn’t the purpose of this. It was to force a penalty on individuals who don’t engage in commerce.

amerpundit on December 13, 2010 at 12:36 PM

Circuit split on its way….. yea…

mailmars on December 13, 2010 at 12:35 PM

Naw, you can’t be sure of that just yet. The judge sounds like he was reaching here, so he might get smacked down on appeal.

crr6 on December 13, 2010 at 12:36 PM

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